S.K. Mohanty, J.
1. Disparaging and derogatory remarks passed by Subdivisional Judicial Magistrate, Balasore, against the petitioner, an Advocate of Balasore District Bar who appeared for accused Nos. 1 to 5 in a Complaint Case are sought to be expunged in this revision preferred Under Section 482 of the Code of Criminal Procedure.
2. The Complaint Case was posted to 25-8-1987 for trial, On this dale PW 5 was examined before charge and cross-examined. Thereafter the petitioner-Advocate filed a memo stating therein the question put by him to PVV 5 while under cross-examination and the answer given by the latter, and made a grievance that the same had not been recorded. There upon the learned S.D.J.M. directed the complainant to bring PW 5 on 31-8- 1987'to clarify the matter. On 31-8-1987 petitioner was allowed to put the question to PW 5 and his answer has been recorded. The learned SDJM thereafter adjourned the case to 7-9-1987 for consideration of charge. The case thereafter underwent one more adjournment and ultimately on 14-9- 1987 the learne SDJM heard arguments from both sides in the matter of framing of charged and posted the case to 21-9-1987 for orders. On this date by a lengthy order, spread over four paragraphs, he directed framing of charges against the accused persons, In the fifth and concluding paragraph which is fairly long, while narrating the events that occurred on 25 8-1987 and 31-8-1987, the learned SDJM went further and passed the following remarks against the petitioner-Advocate in the order-sheet.
The contents of the memo filed by the learned advocate for the accused Nos. 1 to 5 and the statement made by PW 5 dated 31-8- 1987 clearly established that the contents of the memo are false. There is no iota of truth in it. The conduct of the learned advocate, by filing such memo in the Court (Judicial proceeding) amounts to contempt of Court and cancellation of his licence as an advocate. But the advocate concerned is too junior to be dealt with in the matter seriously. I feel ends of justice will be properly served if he is cautioned to be careful in future in filing false memos in the judicial proceedings...
3. At this stage the question and answer contained in the memo may be extracted :
Q. You know the complainant and the accused persons since 1980 since when you have been residing in the house of Surendra Satpathy ?
Ans. Yes I know.
(Translated from Oriya to English)
Now the answer given by PW 5 to the aforesaid question on 31-8-1987 may be extracted.
Ans. I know the family of accused Bimbadhar Misra since 1980. I came to know the complainant in 1981.
(Translated from Oriya to English)
4. The learned counsel for the petitioner argued that the remarks were unjustified and uncalled for. in support of his argument, he placed reliance on the decision of the Supreme Court in the case of Sri Niranjan Patnaik v. Sri Sashibhusan Kar : 61 (1985) CLT 523. The appeal before the Supreme Court was preferred by Shri Patnaik (who figured as PW 8 in a Vigilance case against Shri Sashibhusan Kar), as in the impugned judgment of this Court 8, K. Behera, J. had passed some derogatory and disparaging remarks against him, with the prayer for expunction of the same In this case the remarks against Shri Patnaik who later became cabinet Minister in this State were to the effect that he was an accpmplice to the commission of crime and on his own showing he had thrown moral scruples and sense of honesty, if he had any, to the winds and was liable for abetment of commission of the offence by Sashibhusan Kar. It was further remarked that Shri Patnaik had condemned himself as a habitual bribe-giver. These remarks were sought to be expunged in appeal to the Supreme Court.
5. The apex Court while directing expunction of the remarks observed as follows in relating to the judgment of B.K. Behera. J.:
xx xx there was no need whatever for a minute examination of the appellant's (PW 8's) testimony or a critical inquisition of his character and conduct and the judgment of acquittal could have as well been rendered with reference to the fallings in the evidence of Gopi Nath Mohanty (PW 2).and the acceptable features in the explanation of the first respondent (accused) xx xx xx
The defective approach made by the Appellate Court has resulted hi paragraphs 9 to 17 being devoted to an evaluation and criticism of the appellant's evidence. xx xx xx
It is, therefore, settled law that harsh or disparaging remarks are not to be made against persons and authorities whose conduct comes into consideration before Courts of law unless It is really necessary for the dedsion of the case, as an integral part thereof to animadvert on that conduct. We hold that the adverse remarks made against the appellant were neither jusfied nor called for.
Having regard to the limited controversy in the appeal to the High Court and the hearsay nature of the evidence of the appellant(PW 8) it was not at alt necessary for the Appellate judge to have animadverted on the conduct of the appellant for the purpose of allowing the appeal of the first respondent. Even assuming that a serious evaluation of the evidence of the appellant was really called for in the appeal, the remarks of the learned Appellate Judge should be in conformity with the settled practice of Courts to observe sobriety, moderation and reserve. We need only remind that the higher the forum and the greater the powers, the greater the need for restraint and the more mellowed the reproach should be.
6. The cardinal rule of administration of justice is that freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions (reely and fearlessly and with- out undue interference by anybody, even the higher Courts. At the same time, it must be borne in mind that in expressing their opinion, the Judges and Magistrates must be guided by considerations of justice, fairplay and restraint and the remarks shall not lack judicial poise, moderation and sobriety. Any structure by a Judge or a Magistrate in their judgments against any person or authority must satisfy three tests : Firstly, the person or authority whose conduct is in question Is before the Court or has an opportunity of explaining or defending himself; secondly, there is evidence on record bearing on that conduct justifying the remarks; and thirdly, it is necessary for the decision of the case as an integral part thereof to animadvert on that conduct. Thus, uncalled for, undeserving, unjustified or unnecessarily derogatory or disparaging remarks should be avoided by Judges and Magistrates.
A lawyer, basides being a member of a noble profession, is also an officer of the Court, The Bar and the Bench are integral part of the same mechanism which administers justice to the people. The members of the Bench are drawn from the Bar. Charity ought to begin at home and since courtesy breeds courtesy, it must begin with the Bench which should be courteous to the Bar. Simultaneously professional ethics of a lawyer demands that he should be courteous to the Bench. Unless there is courtesy from both sides, the very system of administration of justice will be in peril.
7. Keeping the above basic principles of law in mind the facts of the case may now be scrutinised The two answers, one said to have been given on 25-8-1987 and the other recorded on 31 8-1987, cannot be said to be inconsistent or contradictory to each other, that being so, the contents of the momo cannot be said to be false. Such comment by the learned S. D. J. M. being the foundation for the other comments touching the conduct of the petitioner that he was liable for contempt and his licence ought to be cancelled and cautioning him to be careful in future were undeserving and unjustified.- This apart, the remarks were also uncalled for for the following reasons. On 31-8-1987 the case was adjourned to 7-9-1987 for consideration of charge. On this date the S.D.J.M. was on casal leave and so the case was adjourned to 14-9-1987 when the S. D J. M, heard arguments in the matter of charge and adjourned the case to 21-9-1987 for orders. Thus the limited question for determination by the S. D. J M. on 21-9-1987 was in the matter of framing of charge. For such determination the S, D. J M. was not called upon to delve himself as to what happened in Court on 25-8-1987 and 31-8-1987 and pass remarks regarding the conduct of the petitioner-Advocate. That being so, the remark was clearly uncalled for. The remarks also lack judicial poise, moderation and sobriety expected from a judicial Officer of the rank of S. D. J. M.
8. The word 'process' occurring in the expression 'abuse of the process of the Court' in Section 482 of the Code is a general word meaning in effect anything done by a Court. in the instant case, the remarks recorded by the learned S, D J. M. against the petitioner-Advocate amount to abuse of process of the Court and connot be allowed to stand.
9. In the result, the remarks passed by the S. D. ). M, against the petitioner-Advocate in paragraph 5 of the impugned order are hereby expunged in exercise of the power conferred Under Section 482 of the Code. The revision is accordingly allowed.
A copy of this judgment be communicated to the S. O. J. M. through the concerned District Judge for his future guidance.